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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Comcast of Washington/Oregon File Number: EB-06-PO-167
)
Antenna Structure Registrant NAL/Acct. No.: 200732920002
)
ASR No. 1005634 FRN: 0004991840
)
Vancouver, Washington
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 23, 2007
By the Resident Agent, Portland Resident Agent Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Comcast of Washington/Oregon ("Comcast"), registered owner of
antenna structure #1005634 in Vancouver, Washington, apparently
repeatedly violated Section 303(q) of the Communications Act of 1934,
as amended ("Act"), by failing to comply with the mandatory FAA
lighting recommendations for the antenna structure, a violation of
Section 17.23 of the Commission's Rules ("Rules"); and by failing to
make observation of the antenna structure's lights at least once each
24 hours either visually or by observing an automatic properly
maintained indicator designed to register any failure of such lights,
a violation of Section 17.47(a) of the Rules. Comcast's failure to
make the required observations of the lighting on the antenna
structure resulted in its failure to notify the nearest Flight Service
Station of the Federal Aviation Administration ("FAA") of the outage
of the flashing obstruction lights, a violation of Section 17.48 of
the Rules. We conclude, pursuant to Section 503(b) of the Act, that
Comcast is apparently liable for a forfeiture in the amount of ten
thousand dollars ($10,000).
II. BACKGROUND
2. Antenna structure #1005634 is located approximately 3.5 miles
northeast from the Pearson Airport in Vancouver, Washington. The
Commission requires antenna structure owners to maintain painting and
lighting on antenna structures that are more than 60.96 meters (200
feet) in height or are located near an airport. Antenna structure
#1005634 is 59.4 meters in height above ground level and, because of
its proximity to Pearson Airport, is required to have "Obstruction
Marking and Lighting" in accordance with the applicable chapters of
the FAA Advisory Circular Number 70/7460-1J. According to antenna
structure #1005634's registration, the structure is required to have
red obstruction lighting consisting of at least one top-mounted red
flashing beacon and two or more steady burning side lights at
mid-level.
3. On November 9, 2006, at approximately 5:30 p.m. local time, an agent
from the Enforcement Bureau's Portland Resident Agent Office observed
that the top flashing red lights and a red side light of antenna
structure #1005634 were extinguished. At approximately 8:30 p.m. local
time, the agent contacted the FAA's Seattle Flight Service Station and
was advised that there was no record of any Notice to Airmen ("NOTAM")
issued concerning the light outage on antenna structure #1005634. The
agent requested the Seattle Flight Service Station to open a NOTAM,
number VUO 11/003, to cover the light outage on structure #1005634.
4. On November 13, 2006, the Portland agent conducted a follow-up
interview with the Seattle Flight Service Station and confirmed that
there was no record that Comcast had contacted the Flight Service
Station to report the light outage. Still on November 13, 2006, at
approximately 12:45 p.m. local time, the Portland agent conducted an
on-site inspection at antenna structure #1005634 with Comcast
employees. During the inspection, the agent asked the Comcast
employees if they conducted daily monitoring of the lights on antenna
structure #1005634. The Comcast employees told the agent that they did
not monitor the lights on the structure and they did not produce an
automatic indicator or alarm to register any failure of the lights.
The Comcast employees stated to the Portland agent that they were not
aware of the light outage on antenna structure #1005634 until they
were informed by the agent. The Comcast employees also acknowledged to
the Portland agent that Comcast had failed to notify the Seattle
Flight Service Station of the outage. The Comcast employees then
verified the light outage. The Portland agent also re-inspected the
antenna structure and found that the structure's top-mounted red
flashing beacon and one of its red mid-level side lights were still
extinguished.
5. On November 14, 2006, a Comcast representative advised the Portland
agent that the extinguished lights were replaced. The Portland Agent
conducted a follow-up inspection and verified that the lights were
operational.
III. DISCUSSION
6. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
7. Section 303(q) of the Act states that antenna structure owners shall
maintain the painting and lighting of antenna structures as prescribed
by the Commission. Section 17.23 of the Rules requires that registered
antenna structures conform to the mandatory FAA painting and lighting
recommendations set forth on the FAA Notice issued to the structure
owner. The FAA Notice for antenna structure #1005634 requires that
the structure have red obstruction lighting consisting of at least one
top-mounted red flashing beacon and two or more steady burning side
lights at mid-level. Section 17.47(a) requires that the owner of any
antenna structure which is registered with the Commission and has been
assigned lighting specifications shall make an observation of the
antenna structure's lights at least once each 24 hours either visually
or by observing an automatic properly maintained indicator designed to
register any failure. Section 17.48 of the Rules requires the owner
of an antenna structure to report immediately by telephone or
telegraph to the nearest Flight Service Station or office of the FAA
any observed or otherwise known extinguishment or improper functioning
or any top steady burning light or any flashing obstruction light,
regardless of its position on the antenna structure, not corrected
within 30 minutes.
8. On November 9, 2006, a Portland Agent observed that antenna structure
#1005634's top-mounted red flashing beacon and one of its red
mid-level side lights were extinguished. The Portland agent contacted
the Seattle Flight Service Station and found that Comcast had not
reported the outage, thus requiring the Portland agent to make the
report requesting the NOTAM. On November 13, 2006, the Portland agent
again contacted the Seattle Flight Service Station and found that
Comcast had never made contact with the Flight Service Station to
report the outage. The Portland agent contacted Comcast employees who
stated that they were unaware of the outage until notified by the
Portland agent. The Comcast employees also acknowledged that they did
not perform daily monitoring of the lights on antenna structure
#1005634 and produced no evidence that Comcast had an automatic
indicator to monitor the structure's lights or alarm to register any
failure of the lights on the structure. The Portland agent then
re-inspected the antenna structure and found that the structure's
top-mounted red flashing beacon and one of its red mid-level side
lights were still extinguished. Comcast's failure to monitor the
lights on antenna structure #1005634 resulted in its failure to notify
the Seattle Flight Service Station of the outage of the flashing
obstruction lights, which are required to be mounted and functioning
pursuant to the FAA's lighting specifications for the antenna
structure. Based on the evidence before us, we find that, between
November 9, 2006, and November 13, 2006, Comcast apparently repeatedly
violated Section 303(q) of the Act, and Sections 17.23, 17.47(a) and
17.48 of the Rules, by failing to maintain the required red
obstruction lighting on antenna structure #1005634; by failing to
monitor, either visually or through an automatic monitoring system,
the antenna structure's lights; and by failing to report the
extinguishment of the flashing obstruction lighting on antenna
structure #1005634.
9. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for failing to comply with the prescribed
lighting and/or marking for an antenna structure is $10,000. In
assessing the monetary forfeiture amount, we must also take into
account the statutory factors set forth in Section 503(b)(2)(D) of the
Act, which include the nature, circumstances, extent, and gravity of
the violations, and with respect to the violator, the degree of
culpability, and history of prior offenses, ability to pay, and other
such matters as justice may require. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors, a $10,000
forfeiture is warranted.
IV. ORDERING CLAUSE
10. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80 of the Commission's Rules, Comcast of Washington/Oregon is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
ten thousand dollars ($10,000) for violations of Section 303(q) of the
Act, and Sections 17.23, 17.48 and 17.47(a) of the Commission's Rules.
11. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Comcast of
Washington/Oregon SHALL PAY the full amount of the proposed forfeiture
or SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
12. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon Bank/LB 358340, 500
Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire
transfer may be made to ABA Number 043000261, receiving bank Mellon
Bank, and account number 911-6106.
13. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Portland Resident
Agent Office, P.O. Box 61469, Vancouver, Washington 98666-1469 and
must include the NAL/Acct. No. referenced in the caption.
14. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
15. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director - Financial Operations, Room 1A625, 445 12^th
Street, S.W., Washington, D.C. 20554.
16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Comcast of Washington/Oregon, 1500
Market Street, 35^th Floor, Philadelphia, PA 19102.
FEDERAL COMMUNICATIONS COMMISSION
Binh Nguyen
Resident Agent
Portland Resident Agent Office
Western Region
Enforcement Bureau
47 U.S.C. S 303(q).
47 C.F.R. S 17.23.
47 C.F.R. S 17.47(a).
47 C.F.R. S 17.48.
47 U.S.C. S 503(b).
47 C.F.R. S 17.21.
See FAA Advisory Circular Number 70/7460-1J, Chapters 4, 5, and 13.
Section 312(f)(1) of the Act, 47 U.S.C. S 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'willful', when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'repeated', when used with reference to the
commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 U.S.C. S 303(q).
47 C.F.R. S 17.23.
See FAA Advisory Circular Number 70/7460-1J, Chapters 4, 5, and 13.
47 C.F.R. S 17.47(a).
47 C.F.R. S 17.48.
The Portland agent's request to issue a NOTAM was done to protect the
public safety, given that the FAA- mandated lighting on the structure was
not functioning and that the antenna structure was therefore a potential
hazard to air navigation. We caution antenna structure owners, however,
that it is incumbent upon them, and not a third party, to notify the FAA
of any extinguishments or malfunctioning lights.
12 FCC Rcd 17087(1997), recon. denied 15 FCC Rcd 303 (1999).
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. SS 303(q), 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80, 17.23,
17.48, 17.47(a).
See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission